Why a copyright bank is pretty useless

What to do when you are a small creative agency and a big competitor rips off your work? Not much, concludes Wouter Boon.

I started my career as an intellectual property lawyer and one of the most important things I learned was that claiming your intellectual property rights is much more difficult than owningthem.

To illustrate this, let’s say you are a small packaging design agency, who creates a truly original gin bottle for a small distillery in Vlaardingen, called Van Toor. The brand is VL92 and together with the distillery it has been created from the ground up.

In designing the bottle the agency – called Rare Fruits Council (RFC) – was inspired by a traditional chemist, which they translated into a label made from simple white paper, a basic matrix to show the ingredients, a typing machine letter, a red date-stamp, some pen-writing and “ml” instead of “l” – which is highly uncommon in the spirits market. All these elements are consciously chosen to communicate the small-scale, artisan character of the distillery.

A wonderful example of the virtues of good packaging design

A truly unique and distinctive bottle is the result. A bottle that instantly wins the sympathy of the important cocktail makers in the Netherlands and beyond. Through RFC’s design – and the taste of the gin, not to forget – VL92 obtains shelf space in the hottest cocktail bars around the world and slowly but surely becomes a brand with global potential. A wonderful example of the virtues of good packaging design.

Naturally VL92 also draws the attention of the competition. One of the competitors, Hooghoudt, seems so impressed that it creates a limited edition bottle jenever with a label that almost looks identical to that of VL92. All the typical design-elements mentioned above are copied, so that a coincidental look alike is virtually impossible.

However, Hooghoudt’s reaction on the similarity of the two bottles in a nutshell comes down to: “we haven’t copied your design.”

So what to do now? Though the RFC has quite a strong case, they decide not to initiate legal actions. Why? An experienced IP lawyer easily costs €300 per hour. So to have him or her draft a simple legal letter, will set you back between €600 and €900. If Hooghoudt keeps denying the copyright infringement, several letters will follow – and many more emails between RFC and the lawyer. One step further, taking Hooghoudt to court, will probably start at €15K. And even if RFC wins, Hooghoudt can’t be ordered to (fully) pay for RFC’s legal costs.

So, the Rare Fruit Council and Van Toor are basically fucked.

This is unfortunately how copyrights work in the real world – or don’t, I should say

This is just one example I came across last week. I’ve heard similar stories of ideas being stolen. It is unfortunately how copyrights work in the real world – or don’t, I should say.

Which is why I was quite surprised to learn – simultaneously with the VL92 case – that the VEA, the body that represents the Dutch commercial communication consultancies in the Netherlands, came up with The VEA copyright bank. A bank where you can register ideas for €25 each, so that you can legally prove you were the first to have an idea.

Well, looking back at the VL92 anecdote, there are three important reasons why registering your ideas at a copyright bank is pretty useless:

1. You can legally prove (also in court) in any possible way that you have a copyright. Since a copyright is born once an idea is translated into an observable form (read: put on paper), you can simply send an email to someone else with an image of the concept attached – free of costs! There you have your prove.

2. Being first, however, is often not the most important argument in a conflict. Ideas are not protectable as such, but only in their executed form. So, in the creative industry, when an idea gets stolen, the execution is usually different. Therefore the legal conflict most of the time consist of quarreling rather than simply claiming.

3. Lawyers are expensive – often more expensive than design/communication consultants. Therefore claiming your copyright is a costly affair. When you add the insecurity of winning to the equation, starting legal proceedings is hardly ever a smart move.

So, some free advice for the VEA; if you really want to help your industry, find a strong case of copyright infringement, bring it to court, approach the press and make it a public example. This will be far more effective than persuading creative agencies to register the hundreds of ideas (€25 each!) they have each year.